Confidentiality and Privilege of Peer Review Records

State law purports to make the proceedings of a medical review or quality assurance committee confidential and privileged. This protection applies to the materials the committee reviews, the records it produces, and the recollections of the people who were at its meetings. N.C. Gen. Stat. § 90-21.22A(c); N.C. Gen. Stat. § 131E-95(b). However, the protection is not as solid as you might imagine.

First of all, many documents originate outside of peer review and quality assurance, where they are not privileged, and these original source documents cannot be turned into privileged secrets just because they were considered during peer review. For example, an operative note in a patient’s chart remains part of that chart, and must be copied for the patient upon a proper request, or produced at a deposition through the proper process, even though a review committee has used it during meetings or attached it to its report. But the review committee should not have to produce its particular copy of the operative note, explain how it used the note in its work, and state the conclusions it drew from the note.

Or so it might seem. Actually, the statutes are applied strictly, not only to documents that are used in the review process, but to documents that originate with the process as well. Courts generally believe that they and the parties to a lawsuit should know as much about the case as possible, and if the review documents are germane to the case, the courts can find lots of technical reasons to decide that the records lie outside the privilege.

In order to protect the privilege as best they can, hospitals and physicians need to do several things:

From the beginning of a review, carefully identify each request for documents as a request that is being made in the course of medical review or quality assurance.

Clearly identify the person making the request as a member of, or an agent for, a medical review or quality assurance committee.

Always identify the documents being produced as documents that are being given to a medical review or quality assurance committee for review purposes.

Be careful to identify any correspondence and materials that are sent to or received from outside review organizations assisting the hospital with peer review or quality assurance functions as being sent or received specifically as part of a peer review or QA process.

Do not rely on your labels. Instead, document the specific review purpose of the request, and document how the committee used the materials for review purposes.

Finally, when resisting a request for privileged information, prepare a detailed response that shows why – in fact – the materials are privileged.

The burden is on the person who is using the privilege to resist what would otherwise potentially be a proper request for information, so that person needs to do everything possible to show the privilege applies to each document being requested.